Thursday, October 06, 2016

Article 123 of Indian Constitution - Ordinance Making Power of President

Introduction to Article 123 of Indian constitution - We have all been told ever since we started studying politics in middle school that the head of our country is the President. He is the commander of the armed forces and the ‘Head of the State’. However, most of the policies and work are done by the prime minister and the elected government. I agree with this statement. Most of the policies regarding any issue, small or big, are drafted by the governing body. The efficiency of that government is still up for interpretation. Every policy or ordinance that is introduced in form of a bill in the two houses is eventually up for the approval or assent of the President. If the President is not satisfied with any part of the bill, he can send it back to the house for making the necessary reforms, after which, it has to be passed again.
There are countless other duties of a president among which, those mentioned in the Article 123 of Indian Constitution are vital. This article talks about the power of the president to promulgate ordinances which are urgent. I’ll explain this statement further, but first we need to understand why the need for this provision was felt.
Article 123 of Indian Constitution - Ordinance Making Power of President
Article 123 of Indian Constitution - Ordinance Making Power of President

The Indian parliament consists of two houses. The Lok Sabha, also known as the Lower House and the Rajya Sabha which is the Upper House. There are maximum 552 members in the Lok Sabha out of which, 530 are from states, 20 from union territories and two are nominated by the president. The members of the Lok Sabha are chosen directly by the Indian people by means of local elections, apart from two, whereas the members of the Rajya Sabha are elected by the legislative assemblies of the states and the union territories. Maximum number of member in Rajya Sabha are 250, out of which 12 are nominated by the president from various fields such as literature, science, business etc.

These two houses are the backbone of our nation’s progress and development. Every decision or policy or law originates here and detailed discussions are carried out weighing the pros and cons of every bill from every possible angle. There are two mandatory sessions of the parliament every year, however, the Indian parliament convenes three sessions namely - Budget session, Monsoon session and finally the Winter session.

Below is the approximate period of the sessions:

• Budget session: February to May
• Monsoon session: July to September
• Winter session: November to December

It’s in the power of the president to call for these sessions and the gap between two sessions cannot be more than 6 months.

Despite this, sometimes there arise some emergency issues or events which require immediate attention. If the parliament is not in session or either of the two houses is not in session, then under Article 123 of Indian Constitution, the president has the power to promulgate the necessary ordinance as the situation requires.

In simpler words, the President can issue an ordinance as needed in order to tackle the situation in the best possible way. An ordinance is nothing but an authoritative order. Below, is the excerpt stating the article. Have a read, and then I will explain them as simply and clearly as I can.

Article 123 of Indian Constitution -

Power of President to promulgate Ordinances during recess of Parliament:

(1) If at any time, except when both Houses of Parliament are in session, the President is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinances as the circumstances appear to him to require.

(2) An Ordinance promulgated under this article shall have the same force and effect as an Act of Parliament, but every such Ordinance –

(a) shall be laid before both Houses of Parliament and shall cease to operate at the expiration of six weeks from the reassembly of Parliament, or, of before the expiration of that period resolutions disapproving it are passed by both Houses, upon the passing of the second of those resolutions; and

(b) may be withdrawn at any time by the President.
Explanation: Where the Houses of Parliament are summoned to reassemble on different dates, the period of six weeks shall be reckoned from the later of those dates for the purposes of this clause.

(3) If and so far as an Ordinance under this article makes any provision which Parliament would not under this Constitution be competent to enact, it shall be void.

I don’t know if it’s just me or every official document has unnecessary difficult words.

Anyways, let’s start.

[Recommended Articles - Article 19 of Indian Constitution]

Simplification of the above text of Article 123 of Indian Constitution:

1. At any given time, if the situation is such that it requires an immediate action, and if the Lok Sabha or the Rajya Sabha or both are not in session, then the president has the power to tackle the situation by his own self. Not individually of course. He will seek guidance from the council of ministers. The situation must be such that the president is satisfied that it needs immediate action. As such, the president’s feeling of satisfaction has no definite terms in the Constitution.

2. The ordinance drafted and passed or issued by the president with the guidance of the council of ministers will have the same effect as if it was passed in the parliament. Every kind of bill or law that can be passed in the parliament, can be issued by the president with the power of this article.

Limitations of Article 123 of Indian Constitution:

a. To prevent the morality of our constitution and irresponsible bills, there’s a clause in this article that states that every ordinance passed by the president has an expiration date of 6 months and 6 weeks. After which, it must be presented in the parliament and passed through proper channels of discussions and voting. Here, the parliament can either pass it, or refuse it. If the ordinance is not presented to the houses, it automatically becomes null and void.

b. The president can revoke or withdraw the ordinance anytime he feels it is no longer needed.

3. If the ordinance passed by the president includes or makes a point which violates the constitution and it would have not been entertained by the parliament, it shall be nulled or become invalid.

Opinion on Article 123 of Indian Constitution:

Now, I know it all sounds very efficient and important to have this kind of a safeguard. And I couldn’t agree more, we must always work under the assumption that things might go wrong and to counter those situation it is imperative to have contingencies or backups or fail-safes. But this power has been misused, a lot. Countless ordinances were issued merely 15 days after a session ended and withdrawn just before the next session started so that they wont be presented in front of parliament.
The most frequent abuse of this power is in relation to the governors of the states, who also have similar power on state level. For regional issues, they can pass ordinances at state level, however some require the assent of the president. In Bihar, a particular ordinance was re-promulgated dozens of times.

Following are a handful of cases that suggest misuse of this power conferred under Article 123 of Indian Constitution:

1.In AK Roy vs. Union of India 1982, National Security Ordinance issued by the president was challenged. It related to 'preventive detention of suspects which might have violated our constitution. The court then ruled that the president's ordinance making power is not above the law.

2.In T Venkata Reddy vs. State of Andhra Pradesh (1985), the court ruled that the reasons behind such ordinances cannot be questioned just like is the case with other legislatures.

3.In DC Wadhwa vs. State of Bihar (1987), the  Supreme Court ruled that courts could overrule or withdraw re-promulgated ordinances.

I am all for the benefits and loopholes of such powers, but the extent of its abuse, has so far outweighed its benefits. We can benefit from this article only if, we could stop abusing our constitution for political gains……Hope you learned something new.


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